Friday, 17 April 2015

EU Zombie Law: the CJEU re-animates the old 'third pillar'

Steve Peers

Back in 1993, when the Maastricht
Treaty entered into force, the EU began adopting measures on criminal law and
policing under a peculiar institutional system, known in practice as the ‘third
pillar’ of EU law. This system was amended by the Treaty of Amsterdam in 1999,
and then survived several attempts to kill it over the next decade; indeed I once
compared it to Rasputin. The Treaty of Lisbon nominally finished it off it as
from that Treaty’s entry into force (1 December 2009); but this was subject to
a five-year transitional period.

That makes it sound as though the
third pillar finally came to an end on 1 December 2014 – but it did not. Indeed
two judgments of the CJEU yesterday (here and here) not only maintain
old third pillar measures in force, but allow new measures based on them to be
adopted. Third pillar measures aren’t exactly dead yet – rather they are undead. Let’s take a look at these
zombies of EU law.

Background

The Treaty of Lisbon has a
transitional Protocol, which contains two rules relating to the third pillar.
First of all, Article 10 sets out the five-year transitional period, after
which the normal jurisdiction of the CJEU would apply to the measures
concerned. At the same time, the UK could choose to opt out of all of these
measures, and then opt back in to some of them, as it indeed did last year (see
discussion here).

Secondly, Article 9 of that
Protocol, which is not subject to a
time limit, states that third pillar measures adopted before the entry into
force of the Treaty of Lisbon stay in force until they are amended or repealed.
Some of them have been amended or repealed, or will be soon (the law
establishing Europol, for instance). But the majority remain in force,
including the controversial law establishing the European Arrest Warrant (EAW).

Why does this still matter? First
of all, the pre-Lisbon measures don’t confer direct effect on individuals, so
can’t be invoked to create rights in national courts. Secondly, this means that
the European Parliament (EP) has not had any real say in the adoption of these
measures. In particular, the EP has a lot of excellent suggestions for the
reform of the EAW. Thirdly, a legal question arises as to whether the
pre-Lisbon measures can serve as a legal basis for the adoption of new measures even after the entry into
force of the Lisbon Treaty. This question was answered by yesterday’s
judgments.

Judgments

The EP challenged the validity of
post-Lisbon Council measures which had implemented pre-Lisbon EU criminal law
acts, in particular giving police forces access to the EU’s Visa Information
System and prohibiting some new designer drugs. There are parallel actions
still pending, against measures implementing pre-Lisbon laws establishing
Europol and the ‘Prum’ system of exchanging data between national police
forces.

The reason for the EP’s objection
to these measures was that the Council exercises these powers by means of a
qualified majority vote, and argues that it does not have to consult the EP at
all, since the legal requirement to consult the EP was set out in the old third
pillar rules in the Treaty, which
were repealed by the Treaty of Lisbon. In the EP’s view, the Council should use
the post-Lisbon rules for the adoption of implementing measures, ie giving the
Commission the power to adopt delegated acts over which the EP has control.
Alternatively, fresh EU legislative acts have to be adopted; these would be
subject to the ordinary legislative procedure.

The CJEU ruled that, in
accordance with Article 9 of the transitional protocol, the pre-Lisbon measures
remain in force. In the Court’s view, that also means that the Council is
entitled to adopt implementing measures following the pre-Lisbon process. However,
the Court, unlike the Advocate-General, said that the Council at least has to
consult the European Parliament on these measures. It reasoned in effect that
the cross-reference to the repealed Treaty rules in the pre-Lisbon legislation
retained those rules in force.

Comments

The Court’s ruling in effect allows
the Council to create new third pillar acts long after the third pillar has nominally
died. It’s as if zombies could procreate, and give birth to baby zombies (I’m
going for a ‘grossest legal analogy’ award here). Furthermore, the Court’s reasoning as regards
the EP’s partial victory means that to some extent, even aspects of the long-dead
Treaty rules on the third pillar have
now been zombified by the Court.

How much damage could these
zombies do? There’s no risk of the famous ‘zombie apocalypse’ affecting EU law.
Apart from these implementing measures, all other EU criminal law acts adopted
since the Treaty of Lisbon have taken the normal EU form of Directives and Regulations,
and have been subject to the post-Lisbon procedures (usually the ordinary
legislative procedure). Many pre-Lisbon EU measures (such as the EAW law) don’t
provide for implementing measures, and some of those which do (such as the
Europol law, as mentioned already) will be replaced soon.

The Court’s rulings are a reasonable
legal interpretation of the transitional rules. But the broader political
problem remains: many controversial measures affecting civil liberties have had
no real input from the EP. Since its resort to the courts has had only limited
success, the EP should now consider alternative means (blocking legislation or
budget disbursements) to achieve the goals of reviewing pre-Lisbon EU criminal
laws – and in particular securing much-needed reforms to the EAW.

2 comments:

Thank you for this nice analysis! I have one question about this sentence: "First of all, the pre-Lisbon measures don’t confer direct effect on individuals, so can’t be invoked to create rights in national courts". It confuses me a bit, perhaps you can explain it further? I was under the impression (since Pupino) that pre-Lisbon measures in principle do receive direct effect under the usual preconditions (if not-implemented or implemented incorrectly and the transposition deadline has elapsed). And then the restriction of this direct effect is that it should not impose obligations to individuals (e.g. aggravate criminal liability). So in principle they would confer rights to individuals that could be invoked in national courts.

Thanks for your comment, Christina. In Pupino the CJEU only stated that Framework Decisions have *indirect* effect, ie the obligation of consistent interpretation. Direct effect is ruled out by the old Article 34 TEU, and that legal effect is preserved by Article 9 of the transitional protocol.